POV: Why the Zubik v. Burwell SCOTUS Case Matters

Alysse ElHage | March 22, 2016 | SHARE:

The U.S. Supreme Court is scheduled to take up a very important case on Wednesday that will determine if religious nonprofits will be forced to provide contraceptives and abortions within health care plans for their employees. Alysse ElHage has a special Point of View article on this issue.

“Beggar—that’s my title,” said 76 year-old Sister Elizabeth Anne in a New York Times article about her 35 years of service with the Little Sisters of the Poor. Known as a “collecting sister,” part of her job involves convincing area businesses in the Bronx to donate food to the elderly who find shelter and care in a home operated by the Catholic nuns.

Founded 175 years ago, today the Little Sisters of the Poor serves 13,000 low-income elderly in 197 homes scattered across the United States and in 30 countries around the world. Their mission is as simple as it is beautiful: to welcome the elderly poor “as Christ and care for them as family” until God calls them home. But in recent years, the nuns have found themselves at the center of a legal battle over the freedom of conscience for religious nonprofits—a battle the Obama Administration forced on them through the Affordable Care Act’s contraceptive-coverage mandate.

The Little Sisters’ legal challenge to the contraceptive-coverage mandate has made it all the way to the U.S. Supreme Court as part of a set of consolidated cases in Zubik v. Burwell, which is scheduled for oral arguments before the high court this Wednesday, March 23. The other religious nonprofits in the case include: Archbishop Zubik, Priests for Life, Roman Catholic Archdiocese of Washington, East Texas Baptist University, Southern Nazarene University, and Geneva College.

At issue in Zubik v. Burwell is whether the government can force religious nonprofits to change their employee health care plans to include coverage for contraceptives and abortion inducing drugs in violation of their deeply held religious beliefs. The specific question the Supreme Court will consider is: “Whether the HHS contraceptive-coverage mandate and its ‘accommodation’ violate the Religious Freedom Restoration Act by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the government has not proven that this compulsion is the least restrictive means of advancing any compelling interest.”

Many legal experts consider the Zubik case one of the most important religious liberty cases of our time. But why should a legal battle involving the healthcare plans of religious nonprofits matter to every person of faith?

Accommodation or Moral Complicity?

“Just sign the form and be done with it!” read a comment on a Facebook post about the Little Sisters of the Poor’s case. This statement sums up a common misconception about the case, which is that the religious nonprofits in Zubik are making a big fuss over nothing and that a simple signature on an “opt-out” form is the solution.

It is true that the Department of Health and Human Services (HHS) has offered an “accommodation” to religious nonprofits the government does not consider “religious enough” to quality for an exemption from the mandate that it gives churches. The accommodation requires the Little Sisters and other groups to sign a document that essentially gives HHS permission to use the nonprofits’ health plans to provide contraceptive drugs to their employees with the government covering the cost. But the religious nonprofits argue that the HHS “accommodation” still makes them morally complicit in an act that violates their conscience (The Becket Fund for Religious Liberty, which represents the Little Sisters, has an excellent comic explaining the issue).

“What [HHS] is calling an ‘opt-out’ is really an ‘opt-in’ —a permission slip where we authorize the use of our religious health plan to offer services that violate our beliefs and waive our protections under federal civil rights laws,” Sister Constance Veit, director of vocations for the Little Sisters of the Poor, wrote in the New York Times. “The government says this isn’t a problem because it will pay for the services that violate our religious beliefs. But for us this is not a money question; it is a moral question about what we offer in our plan.”

If the Little Sisters’ do not comply with the HHS contraceptive-coverage mandate or sign the “accommodation form, they could face up to $70 million a year in federal fines. Instead, they want the government to grant them the same exemption from the mandate it already grants to churches and some major corporations. They point out that the government does not need their religious health plan to provide contraceptive-coverage because the government can do so as an add-on benefit through its own health care exchange.

Three Reasons the Zubik Case Matters:

As the U.S. Supreme Court hears Zubik v. Burwell, there are three points to remember about why this case matters, not only to the Little Sisters of the Poor, but all people of faith.

1. At its core, the Zubik case is about the freedom of conscience for religious nonprofits. The First Amendment guarantees more than just the freedom to worship; it protects the free exercise of religion—which is the ability to live out our faith in the public square, including our vocations. “Our goal with this case is to have the freedom to follow our conscience in what we do and offer,” Sister Constance wrote. “[I]n a free and diverse society, the American government should not force its citizens to act in violation of their religious beliefs, especially when there are … more effective ways to meet the government’s stated goals.”

2. The case is also about who decides what constitutes a violation of religious beliefs—the government or the religious organization? In this case, the Obama administration is arguing that the “accommodation” should be enough to satisfy the moral convictions of religious nonprofits because the government is paying for the contraceptive coverage. “[The government] is saying, ‘hey, Sisters, we’re not asking you to do anything your faith says you can’t do,’” The Becket Fund for Religious Liberty attorney Daniel Blomberg explained on NC Family’s “Family Policy Matters” radio program. “Government officials have to respect [religious] beliefs; they don’t get to determine them, or try to manipulate or change them,”

3. Finally, the outcome of the Zubik case will impact how the government treats religious nonprofits on matters of conscience in the future. This is why a diverse coalition of religious leaders from Jewish, Muslim, Hindu, Native American, Catholic, and Protestant faiths have filed amicus briefs supporting the Little Sisters. Again, Becket Fund’s Daniel Blomberg summed up the importance of the Zubik case perfectly when he asked, “If the federal government can come to the Little Sisters of the Poor and say, ‘You’re not religious enough to have your religious beliefs protected, and I’m going to force you to violate a core, fundamental, well-known religious belief on pain of crushing penalties.’ Well, if they can do that to nuns who take care of elderly poor people, they can do almost anything to any of us.”

The Little Sisters of the Poor is asking the U.S. Supreme Court to simply let them continue to serve the elderly by ruling against the government’s intrusive contraceptive-coverage mandate that would force religious nonprofits to either violate their conscience or to pay fines that could cripple their ministries. This week, let’s join the Little Sisters of the Poor in praying that the Supreme Court rules in their favor and upholds our first and most precious Constitutional right: the freedom to live and act in accordance with our religious beliefs.